DNA evidence has exonerated over two hundred wrongfully convicted defendants in the last several years, providing insights into the causes of such convictions. One such cause, faulty scientific evidence, is a focus of this article. For decades, many have written about the prevalence of and reasons for wrongful convictions --what I have termed “misconvictions.” A few reasons support the coinage “misconvictions”: the miscarriage of justice when an innocent person is convicted; the mistakes involved in the prosecution and trial of the case; the mistaken identification that may have occurred; and finally, the recognition that all wrongful convictions are a missed opportunity to convict the person who actually committed the crime. In light of these concerns, misconvictions is an apt term.
This Article provides a new perspective on misconvictions by focusing on the intersection of ethics and expert evidence in criminal cases, specifically considering the actions of judges and prosecutors. The Article has a dual focus: first, to explain the forensic science concerns that contribute to misconvictions; and second, to contemplate the role that the “ministers of justice”--the executive and judicial branches--play in creating misconvictions by their management of expert evidence. The Article then provides suggestions for improving the quality of justice to reduce the likelihood of wrongful convictions.
While trial judges decide whether evidence is admissible in criminal trials, prosecutors wield exceptional power in decisions about whom to prosecute and what evidence to introduce while trying a case. These two ministers of justice--possessing virtually all the power to regulate a criminal case--must be held to a high standard, not only to ensure convictions of those who have committed crimes, but also to ensure that to the degree possible, the innocent are not convicted. Yet prosecutors, by using unreliable forensic evidence and questionable expert witnesses, and judges, by failing to exercise their gatekeeping role in a sufficiently diligent manner, have become part of the mechanism by which misconvictions occur. This Article discusses ways for prosecutors and judges to rise to the ethical demands of their positions.
Part II of this Article details the laboratory failures, the proficiency concerns, and the myriad of problems with the so-called “individualization” specialties that seek to match a person to a crime.
Part III explains how prosecutors, in their role as ministers of justice, have an affirmative duty to try to avoid the wrongful conviction of innocent people by using unreliable expert evidence. The Article provides specific suggestions for achieving that goal. Part IV explains the ethics issues implicated when judges exercise their gatekeeping and trial management roles and also discusses options to help trial courts comply with such ethical obligations.